Students' free speech rights have taken a big hit following a Monday Supreme Court ruling about bong hits.
We have been watching with interest the case of Joseph Frederick, now 24, who sued his high school principal after he was suspended for 10 days in 2002 for displaying the banner "Bong Hits 4 Jesus" at an Olympic Torch Relay in Alaska. Frederick was not in school that day and unfurled his banner across the street from his school and classmates, who were watching the relay.
Chief Justice John Roberts wrote the majority opinion in the case, decided Monday, declaring that the public school officials did not violate Frederick's free speech rights.
This ruling is disturbing on several fronts. First, it goes beyond the traditional boundary on censoring student free speech. That boundary had been speech that caused a "material and substantial" disruption within the school. As Justice John Paul Stevens wrote in his dissent: "This case began with a silly nonsensical banner, (and) ends with the court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, so long as someone could perceive that speech to contain a latent pro-drug message."
Frederick has claimed he had no drug message at all he simply wanted to get noticed by TV cameras. The banner was undoubtedly stupid, juvenile, immature and easily interpreted to be pro-drug, whether he meant it to be or not. But, as we have said many times before, while we might not like what he said, we will defend to the death his right to say it.
The second, and much more important, effect of this ruling is to set the precedent when it comes to student speech outside of school. While Roberts tried to frame the ruling as a narrow decision writing that it was clear Frederick was at a school-sanctioned event and therefore bound by student free speech precedents it was not as simple as that. Frederick disputed he attended a "school event" because he had not been in class that day and was across the street from the school when he displayed his banner.
"There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents," Roberts wrote, which is certainly an understatement.
However, this ruling gives a clear indication of the unfortunate path the Court is likely to take as even more complicated cases wind their way through the docket. For example, based on the Frederick case, it appears the Court would uphold the punishments of students for statements made on Web sites, such as MySpace.com, if they made their way into the school or "school sponsored events," even if the student maintained the site from home.
It is not yet clear just how far school authority reaches, but based on Monday's ruling, it seems as if their arms just got a lot longer.